Beruflich Dokumente
Kultur Dokumente
DECISION
CARPIO, J : p
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5
June 2001 ("Resolution No. 01-005") and Resolution No. NBC 01-006 dated 20
July 2001 ("Resolution No. 01-006") of respondent Commission on Elections
("COMELEC"). Resolution No. 01-005 proclaimed the 13 candidates elected as
Senators in the 14 May 2001 elections while Resolution No. 01-006 declared
"official and final" the ranking of the 13 Senators proclaimed in Resolution No.
01-005.
The Facts
Shortly after her succession to the Presidency in January 2001, President Gloria
Macapagal-Arroyo nominated then Senator Teofisto T. Guingona, Jr. ("Senator
Guingona") as Vice-President. Congress confirmed the nomination of Senator
Guingona who took his oath as Vice-President on 9 February 2001.
Following Senator Guingona's confirmation, the Senate on 8 February 2001
passed Resolution No. 84 ("Resolution No. 84") certifying to the existence of a
vacancy in the Senate. Resolution No. 84 called on COMELEC to fill the vacancy
through a special election to be held simultaneously with the regular elections on
14 May 2001. Twelve Senators, with a 6-year term each, were due to be elected
in that election. 1 Resolution No. 84 further provided that the "Senatorial
candidate garnering the 13th highest number of votes shall serve only for the
unexpired term of former Senator Teofisto T. Guingona, Jr.," which ends on 30
June 2004. 2
On 5 June 2001, after COMELEC had canvassed the election results from all the
provinces but one (Lanao del Norte), COMELEC issued Resolution No. 01-005
provisionally proclaiming 13 candidates as the elected Senators. Resolution No.
01-005 also provided that "the first twelve (12) Senators shall serve for a term of
six (6) years and the thirteenth (13th) Senator shall serve the unexpired term of
three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
President." 3 Respondents Ralph Recto ("Recto") and Gregorio Honasan
("Honasan") ranked 12th and 13th, respectively, in Resolution No. 01-005.
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On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica ("petitioners"),
as voters and taxpayers, filed the instant petition for prohibition, impleading only
COMELEC as respondent. Petitioners sought to enjoin COMELEC from proclaiming
with finality the candidate for Senator receiving the 13th highest number of
votes as the winner in the special election for a single three-year term seat.
Accordingly, petitioners prayed for the nullification of Resolution No. 01-005 in so
far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without
jurisdiction because: (1) it failed to notify the electorate of the position to be
filled in the special election as required under Section 2 of Republic Act No. 6645
("R.A. No. 6645"); 4 (2) it failed to require senatorial candidates to indicate in
their certificates of candidacy whether they seek election under the special or
regular elections as allegedly required under Section 73 of Batas Pambansa Blg.
881; 5 and, consequently, (3) it failed to specify in the Voters Information Sheet
the candidates seeking election under the special or regular senatorial elections
as purportedly required under Section 4, paragraph 4 of Republic Act No. 6646
("R.A. No. 6646"). 6 Petitioners add that because of these omissions, COMELEC
canvassed all the votes cast for the senatorial candidates in the 14 May 2001
elections without distinction such that "there were no two separate Senate
elections held simultaneously but just a single election for thirteen seats,
irrespective of term." 7
Stated otherwise, petitioners claim that if held simultaneously, a special and a
regular election must be distinguished in the documentation as well as in the
canvassing of their results. To support their claim, petitioners cite the special
elections simultaneously held with the regular elections of 13 November 1951
and 8 November 1955 to fill the seats vacated by Senators Fernando Lopez and
Carlos P. Garcia, respectively, who became Vice-Presidents during their tenures in
the Senate. 8 Petitioners point out that in those elections, COMELEC separately
canvassed the votes cast for the senatorial candidates running under the regular
elections from the votes cast for the candidates running under the special
elections. COMELEC also separately proclaimed the winners in each of those
elections. 9
Petitioners sought the issuance of a temporary restraining order during the
pendency of their petition.
Without issuing any restraining order, we required COMELEC to Comment on the
petition.
On 20 July 2001, after COMELEC had canvassed the results from all the
provinces, it issued Resolution No. 01-006 declaring "official and final" the
ranking of the 13 Senators proclaimed in Resolution No. 01-005. The 13 Senators
took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required petitioners
to file an amended petition impleading Recto and Honasan as additional
respondents. Petitioners accordingly filed an amended petition in which they
reiterated the contentions raised in their original petition and, in addition, sought
the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a special
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election to fill the seat vacated by Senator Guingona was validly held on 14 May
2001. COMELEC and Honasan further raise preliminary issues on the mootness
of the petition and on petitioners' standing to litigate. Honasan also claims that
the petition, which seeks the nullity of his proclamation as Senator, is actually a
quo warranto petition and the Court should dismiss the same for lack of
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a
proper party to this case because the petition only involves the validity of the
proclamation of the 13th placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally —
We accord the same treatment to petitioners in the instant case in their capacity
as voters since they raise important issues involving their right of suffrage,
considering that the issue raised in this petition is likely to arise again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be called to
fill any vacancy in the Senate and the House of Representatives "in the manner
prescribed by law," thus:
In case of vacancy in the Senate or in the House of Representatives, a
special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
(Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the expiration
of the term, Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to
call a special election by fixing the date of the special election, which shall not be
earlier than sixty (60) days nor later than ninety (90) after the occurrence of the
vacancy but in case of a vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election; and (2) to give notice
to the voters of, among other things, the office or offices; to be voted for.
Did COMELEC, in conducting the special senatorial election simultaneously with
the 14 May 2001 regular elections, comply with the requirements in Section 2 of
R.A. No. 6645?
A survey of COMELEC's resolutions relating to the conduct of the 14 May 2001
elections reveals that they contain nothing which would amount to a
compliance, either strict or substantial, with the requirements in Section 2 of R.A.
No. 6645, as amended. Thus, nowhere in its resolutions 24 or even in its press
releases 25 did COMELEC state that it would hold a special election for a single
three-year term Senate seat simultaneously with the regular elections on 14
May 2001. Nor did COMELEC give formal notice that it would proclaim as winner
the senatorial candidate receiving the 13th highest number of votes in the
special election.
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of
vacancy in the Senate, the special election to fill such vacancy shall be held
simultaneously with the next succeeding regular election. Accordingly, the special
election to fill the vacancy in the Senate arising from Senator Guingona's
appointment as Vice-President in February 2001 could not be held at any other
time but must be held simultaneously with the next succeeding regular elections
on 14 May 2001. The law charges the voters with knowledge of this statutory
notice and COMELEC's failure to give the additional notice did not negate the
calling of such special election, much less invalidate it.
Our conclusion might be different had the present case involved a special election
to fill a vacancy in the House of Representatives. In such a case, the holding of
the special election is subject to a condition precedent, that is, the vacancy should
take place at least one year before the expiration of the term. The time of the
election is left to the discretion of COMELEC subject only to the limitation that it
holds the special election within the range of time provided in Section 2 of R.A.
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No. 6645, as amended. This makes mandatory the requirement in Section 2 of
R.A. No. 6645, as amended, for COMELEC to "call . . . a special election . . . not
earlier than 60 days nor longer than 90 days after the occurrence of the vacancy"
and give notice of the office to be filled. The COMELEC's failure to so call and give
notice will nullify any attempt to hold a special election to fill the vacancy.
Indeed, it will be well-nigh impossible for the voters in the congressional district
involved to know the time and place of the special election and the office to be
filled unless the COMELEC so notifies them.
No Proof that COMELEC's Failure
to Give Notice of the Office to be Filled
and the Manner of Determining the
Winner in the Special Election Misled Voters
The test in determining the validity of a special election in relation to the failure
to give notice of the special election is whether the want of notice has resulted in
misleading a sufficient number of voters as would change the result of the
special election. If the lack of official notice misled a substantial number of voters
who wrongly believed that there was no special election to fill a vacancy, a choice
by a small percentage of voters would be void. 32
The required notice to the voters in the 14 May 2001 special senatorial election
covers two matters. First, that COMELEC will hold a special election to fill a
vacant single three-year term Senate seat simultaneously with the regular
elections scheduled on the same date. Second, that COMELEC will proclaim as
winner the senatorial candidate receiving the 13th highest number of votes in
the special election. Petitioners have neither claimed nor proved that COMELEC's
failure to give this required notice misled a sufficient number of voters as would
change the result of the special senatorial election or led them to believe that
there was no such special election.
Instead, what petitioners did is conclude that since COMELEC failed to give such
notice, no special election took place. This bare assertion carries no value. Section
2 of R.A. No. 6645, as amended, charged those who voted in the elections of 14
May 2001 with the knowledge that the vacancy in the Senate arising from
Senator Guingona's appointment as Vice-President in February 2001 was to be
filled in the next succeeding regular election of 14 May 2001. Similarly, the
absence of formal notice from COMELEC does not preclude the possibility that
the voters had actual notice of the special election, the office to be voted in that
election, and the manner by which COMELEC would determine the winner. Such
actual notice could come from many sources, such as media reports of the
enactment of R.A. No. 6645 and election propaganda during the campaign. 33
More than 10 million voters cast their votes in favor of Honasan, the party who
stands most prejudiced by the instant petition. We simply cannot disenfranchise
those who voted for Honasan, in the absence of proof that COMELEC's omission
prejudiced voters in the exercise of their right of suffrage so as to negate the
holding of the special election. Indeed, this Court is loathe to annul elections and
will only do so when it is "impossible to distinguish what votes are lawful and
what are unlawful, or to arrive at any certain result whatever, or that the great
body of the voters have been prevented by violence, intimidation, and threats
from exercising their franchise." 34
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Otherwise, the consistent rule has been to respect the electorate's will and let
the results of the election stand, despite irregularities that may have attended
the conduct of the elections. 35 This is but to acknowledge the purpose and role of
elections in a democratic society such as ours, which is:
to give the voters a direct participation in the affairs of their government,
either in determining who shall be their public officials or in deciding some
question of public interest; and for that purpose all of the legal voters
should be permitted, unhampered and unmolested, to cast their ballot.
When that is done and no frauds have been committed, the ballots should
be counted and the election should not be declared null. Innocent voters
should not be deprived of their participation in the affairs of their
government for mere irregularities on the part of the election officers, for
which they are in no way responsible. A different rule would make the
manner and method of performing a public duty of greater importance
than the duty itself. 36 (Emphasis in the original)
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this
resolution.
S[ENATOR] O[SMEÑA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.
S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the distinguished
Majority Leader, Chairman of the Committee on Rules, author of this
resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the
Comelec.
Evidently, COMELEC, in the exercise of its discretion to use means and methods
to conduct the special election within the confines of R.A. No. 6645, merely chose
to adopt the Senate's proposal, as embodied in Resolution No. 84. This Court has
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consistently acknowledged and affirmed COMELEC's wide latitude of discretion in
adopting means to carry out its mandate of ensuring free, orderly, and honest
elections subject only to the limitation that the means so adopted are not illegal
or do not constitute grave abuse of discretion. 38 COMELEC's decision to abandon
the means it employed in the 13 November 1951 and 8 November 1955 special
elections and adopt the method embodied in Resolution No. 84 is but a
legitimate exercise of its discretion. Conversely, this Court will not interfere
should COMELEC, in subsequent special senatorial elections, choose to revert to
the means it followed in the 13 November 1951 and 8 November 1955 elections.
That COMELEC adopts means that are novel or even disagreeable is no reason to
adjudge it liable for grave abuse of discretion. As we have earlier noted:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this Court also. It should
be allowed considerable latitude in devising means and methods that will
insure the accomplishment of the great objective for which it was created
— free, orderly and honest elections. We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere. 39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to the
electorate of necessary information regarding a special election, are central to an
informed exercise of the right of suffrage. While the circumstances attendant to
the present case have led us to conclude that COMELEC's failure to so call and
give notice did not invalidate the special senatorial election held on 14 May 2001,
COMELEC should not take chances in future elections. We remind COMELEC to
comply strictly with all the requirements under applicable laws relative to the
conduct of regular elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio
Morales, Callejo, Sr. and Azcuna, JJ., concur.
Davide, Jr., C.J., joins Mr. Justice Puno in his dissent.
Puno, J., please see dissenting opinion.
Vitug, J., Ynares-Santiago, and Tinga, JJ., join Justice Puno's dissent.
Separate Opinions
PUNO, J., dissenting:
The case at bar transcends the political fortunes of respondent Senator Gregorio
B. Honasan. At issue is the right of the people to elect their representatives on
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the basis and only on the basis of an informed judgment. The issue strikes at the
heart of democracy and representative government for without this right, the
sovereignty of the people is a mere chimera and the rule of the majority will be
no more than mobocracy. To clarify and sharpen the issue, I shall first unfurl the
facts.
I. Facts
The facts are undisputed. In February 2001, a Senate seat for a term expiring on
June 30, 2004 was vacated with the appointment of then Senator Teofisto
Guingona, Jr. as Vice-President of the Philippines. The Senate adopted Resolution
No. 84 certifying "the existence of a vacancy in the Senate and calling the
Commission on Elections (COMELEC) to fill up such vacancy through election to
be held simultaneously with the regular election on May 14, 2001, and the
senatorial candidate garnering the thirteenth (13th) highest number of votes
shall serve only for the unexpired term of former Senator Teofisto T. Guingona,
Jr." In the deliberations of the Senate on the resolution, the body agreed that the
procedure it adopted for determining the winner in the special election was for
the "guidance" and "implementation" of the COMELEC. The COMELEC had no
discretion to alter the procedure.
Nobody filed a certificate of candidacy to fill the position of senator to serve the
unexpired three-year term in the special election. All the senatorial candidates
filed the certificates of candidacy for the twelve regular Senate seats to be
vacated on June 30, 2001 with a six-year term expiring on June 30, 2007.
COMELEC distributed nationwide official documents such as the Voter
Information Sheet, List of Candidates and Sample Ballot. The List of Candidates
did not indicate a separate list of candidates for the special election. The Sample
Ballot and the official ballots did not provide two different categories of Senate
seats to be voted, namely the twelve regular six-year term seats and the single
three-year term seat. Nor did the ballots provide a separate space for the
candidate to be voted in the special election and instead provided thirteen spaces
for thirteen senatorial seats.
Without any COMELEC resolution or notice on the time, place and manner of
conduct of the special election, the special election for senator was held on the
scheduled May 14, 2001 regular elections. A single canvass of votes for a single
list of senatorial candidates was done. On June 5, 2001, respondent COMELEC
promulgated COMELEC Resolution No. NBC01-005, the dispositive portion of
which reads, viz:
On June 21, 2001, petitioners filed with the Court their petition for prohibition to
stop respondent COMELEC from proclaiming any senatorial candidate in the May
14, 2001 election as having been elected for the lone senate seat for a three-year
term. Copies of the petition were served on respondent COMELEC twice, first on
June 20, 2001 by registered mail, and second on June 21, 2001, by personal
delivery of petitioner Mojica. On June 26, 2001 the Court issued a Resolution
requiring respondent COMELEC to comment within ten days from notice. Even
before filing its comment, respondent COMELEC issued Resolution No. NBC-01-
006 on July 20, 2001, the dispositive portion of which reads, viz:
NOW, THEREFORE, by virtue of the powers vested in it under the
Constitution, Omnibus Election Code and other election laws, the
Commission on Elections sitting as the National Board of Canvassers
hereby DECLARES official and final the above ranking of the proclaimed
13 Senators of the Philippines in relation to NBC Resolution No. 01-005
promulgated June 5, 2001.
(b) Again, a vacancy was created in the Senate by the election of then
Senator Carlos P. Garcia to the Vice Presidency in the 1953 presidential
elections. A special election was held in November 1955 to elect his
successor to the vacated Senatorial position for a two year term expiring
on 30 December 1957.
Said special election for one senator to fill the vacancy left by the
Honorable Carlos Garcia was held in November 1955 simultaneously with
the regular election for eight Senate seats with a six year term. Here,
separate spaces were provided for in the official ballot for the single
Senate seat for the two year term as differentiated from the eight Senate
seats with six year terms. The results as recorded by Senate official files
show that votes for the candidates for the Senate seat with a two-year
term were separately tallied from the votes for the candidates for the
eight Senate seats with six-year term . . . 1 (emphases supplied)
Congress passed R.A. No. 6645, "An Act Prescribing the Manner of Filling a
Vacancy in the Congress of the Philippines," to implement this constitutional
provision. The law provides, viz:
SECTION 1. In case a vacancy arises in the Senate at least eighteen
(18) months or in the House of Representatives at least one (1) year
before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate or
the House of Representatives, as the case may be, certifying to the
existence of such vacancy and calling for a special election, shall hold a
special election to fill such vacancy. If the Congress is in recess, an official
communication on the existence of the vacancy and call for a special
election by the President of the Senate or by the Speaker of the House of
Representatives, as the case may be, shall be sufficient for such purpose.
The Senator or Member of the House of Representatives thus elected
shall serve only for the unexpired term.
Shortly after the promulgation of the Malolos Constitution, the Philippines fell
under American rule. The Americans adopted the policy of gradually increasing
the autonomy of the Filipinos before granting their independence. 13 In 1934, the
U.S. Congress passed the Tydings-McDuffie Law ". . . the last of the constitutional
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landmarks studding the period of constitutional development of the Filipino
people under the American regime before the final grant of Philippine
independence." 14 Under this law, the American government authorized the
Filipino people to draft a constitution in 1934 with the requirement that the
"constitution formulated and drafted shall be republican in form." In conformity
with this requirement, 15 Article II, Section 1 of the 1935 Philippine Constitution
was adopted, viz:
Sec. 1. The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them.
Thus, elections are substantially regulated for them to be fair and honest, for
order rather than chaos to accompany the democratic processes. 41 This Court
has consistently ruled from as early as the oft-cited 1914 case of Gardiner v.
Romulo 42 that the purpose of election laws is to safeguard the will of the people,
the purity of elections being one of the most important and fundamental
requisites of popular government. We have consistently made it clear that we
frown upon any interpretation of the law or the rules that would hinder in any
way not only the free and intelligent casting of the votes in an election but also
the correct ascertainment of the results. 43 To preserve the purity of elections,
comprehensive and sometimes complex election codes are enacted, each
provision of which — whether it governs the registration and qualifications of
voters, the selection and eligibility of candidates, or the voting process itself —
inevitably affects the individual's right to vote. 44 As the right to vote in a free
and unimpaired manner is preservative of other basic civil and political rights,
Chief Justice Warren, speaking for the U.S. Supreme Court in Reynolds v. Sims, 45
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cautioned that any alleged infringement of the right of citizens to vote must be
carefully and meticulously scrutinized. It was to promote free, orderly and
honest elections and to preserve the sanctity of the right to vote that the
Commission on Elections was created. 46 The 1987 Constitution mandates the
COMELEC to ensure "free, orderly, honest, peaceful and credible elections." 47
B. History of Suffrage in the Philippines
In primitive times, the choice of who will govern the people was not based on
democratic principles. Even then, birth or strength was not the only basis for
choosing the chief of the tribe. When an old chief has failed his office or
committed wrong or has aged and can no longer function, the members of the
tribe could replace him and choose another leader. 48 Among the Muslims, a
council or ruma bechara chooses the sultan. An old sultan may appoint his
successor, but his decision is not absolute. Among the criteria for choosing a
sultan were age, blood, wealth, fidelity to Islamic faith and exemplary character
or personality. 49 In times of crises, the community may choose its leader
voluntarily, irrespective of social status. By consensus of the community, a serf
or slave may be voted the chief on account of his ability.
As far back as the Spanish regime, the Filipinos did not have a general right of
suff rage. 50 it was only in the Malolos Constitution of 1899 that the right of
suffrage was recognized; 51 it was a by-product of the Filipinos' struggle against
the Spanish colonial government and an offshoot of Western liberal ideas on civil
government and individual rights. 52 The life of the Malolos Constitution was,
however, cut short by the onset of the American regime in the Philippines. But
the right of suffrage was reiterated in the Philippine Bill of 1902. 53 The first
general elections were held in 1907 54 under the first Philippine Election Law, Act
No. 1582, which took effect on January 15, 1907. This law was elitist and
discriminatory against women. The right of suffrage was carried into the Jones
Law of 1916. 55 Whereas previously, the right was granted only by the Philippine
Legislature and thus subject to its control, the 1935 Constitution elevated
suffrage to a constitutional right. 56 It also provided for a plebiscite on the issue of
whether the right of suffrage should be extended to women. On April 30, 1937;
the plebiscite was held and the people voted affirmatively. In the 1973
Constitution, 57 suffrage was recognized not only as a right, but was imposed as
a duty to broaden the electoral base and make democracy a reality through
increased popular participation in government. The voting age was lowered, the
literacy requirement abolished, and absentee voting was legalized. 58 The 1987
Constitution likewise enshrines the right of suffrage in Article V, but unlike the
1973 Constitution, it is now no longer imposed as a duty. 59 The 1948 Universal
Declaration of Human Rights 60 and the 1976 Covenant on Civil and Political
Rights 61 also protect the right of suffrage.
VI. Voter Information:
Prerequisite to a Meaningful Vote in a Genuinely Free,
Orderly and Honest Elections in a Working Democracy
A. Democracy, information and discourse on public matters
1. U.S. jurisdiction
For the right of suffrage to have a value, the electorate must be informed about
public matters so that when they speak through the ballot, the knowledgeable
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voice and not the ignorant noise of the majority would prevail. Jefferson
admonished Americans to be informed rather than enslaved by ignorance, saying
that "(i)f a nation expects to be ignorant and free in a state of civilization, it
expects what never was and never will be. " 62 Jefferson emphasized the
importance of discourse in a democracy, viz:
In every country where man is free to think and to speak, differences of
opinion arise from difference of perception, and the imperfection of
reason; but these differences when permitted, as in this happy country,
to purify themselves by discussion, are but as passing clouds
overspreading our land transiently and leaving our horizon more bright
and serene. 63
Other noted political philosophers like John Stuart Mill conceived of the
"marketplace of ideas" as a necessary means of testing the validity of ideas,
viz:
(N)o one's opinions deserve the name of knowledge, except so far as he
has either had forced upon him by others, or gone through of himself,
the same mental process which could have been required of him in
carrying on an active controversy with opponents. 64
In the same vein, political philosopher Alexander Meiklejohn, in his article "Free
Speech Is An Absolute," stressed that, "(s)elf-government can exist only insofar
as the voters acquire the intelligence, integrity, sensitivity, and generous
devotion to the general welfare that, in theory, casting a ballot is assumed to
express." 65 To vote intelligently, citizens need information about their
government. 66 Even during the diaper days of U.S. democracy, the Framers of
the U.S. Constitution postulated that self-governing people should be well-
informed about the workings of government to make intelligent political choices.
In discussing the First Amendment, James Madison said: "The right of freely
examining public characters and measures, and of free communication thereon,
is the only effectual guardian of every other right . . ." 67 Thus, the United States,
a representative democracy, has generally subscribed to the notion that public
information and participation are requirements for a representative democracy
where the electorate make informed choices. The First Amendment to the U.S.
Constitution, which establishes freedom of the press and speech supports this
proposition. The First Amendment's jealous protection of free expression is
largely based on the ideas that free and open debate will generate truth and that
only an informed electorate can create an effective democracy. 68
The First Amendment reflects the Framers' belief that public participation in
government is inherently positive. An informed citizenry is a prerequisite to
meaningful participation in government. Thus, the U.S. Congress embraced this
principle more concretely with the passage of the Freedom of Information Act of
1966 (FOIA). 69 The law enhanced public access to and understanding of the
operation of federal agencies with respect to both the information held by them
and the formulation of public policy. 70 In the leading case on the FOIA,
Environmental Protection Agency v. Mink, 71 Justice Douglas, in his dissent,
emphasized that the philosophy of the statute is the citizens' right to be
informed about "what their government is up to." 72 In Department of Air Force
v. Rose, 73 the U.S. Supreme Court acknowledged that the basic purpose of the
FOIA is "to open agency action to the light of public scrutiny". These rulings were
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reiterated in the 1994 case of Department of Defense, et al. v. Federal Labor
Relations Authority, et al. 74 Be that as it may, the U.S. Supreme Court
characterized this freedom of information as a statutory and not a constitutional
right in Houchins v. KQED, Inc., et al., 75 viz: "there is no constitutional right to
have access to particular government information, or to require openness from
the bureaucracy. . . The Constitution itself is neither a Freedom of Information
Act nor an Official Secrets Act." 76 Neither the courts nor Congress has recognized
an affirmative constitutional obligation to disclose information concerning
governmental affairs; the U.S. Constitution itself contains no language from
which the duty could be readily inferred. 77 Nevertheless, the U.S. federal
government, the fifty states and the District of Columbia have shown their
commitment to public access to government-held information. All have statutes
that allow varying degrees of access to government records. 78
While the right of access to government information or the "right to know" is
characterized as a statutory right, the right to receive information 79 was first
identified by the U.S. Supreme Court as a constitutional right in the 1936 case of
Grosjean v. American Press Company. 80 The Court also stated that the First
Amendment protects the natural right of members of an organized society,
united for their common good, to impart and acquire information about their
common interests. Citing Judge Cooley, the Court held that free and general
discussion of public matters is essential to prepare the people for an intelligent
exercise of their rights as citizens. 81 The Court also noted that an informed
public opinion is the most potent of all restraints upon misgovernment. Many
consider Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
82 the seminal "right to receive" case. 83 In this 1976 decision, the Court struck
down a Virginia statute forbidding pharmacists from advertising the prices of
prescription drugs. Writing for the majority, Justice Blackmun held that the free
flow of information about commercial matters was necessary to ensure informed
public decision-making. He reasoned that the protection of the First Amendment
extends not only to the speaker, but to the recipient of the communication.
Although the case dealt with commercial speech, the majority opinion made it
clear that the constitutional protection for receipt of information would apply
with even more force when more directly related to self-government and public
policy. 84
In 1982, the U.S. Supreme Court highlighted the connection between self-
government and the right to receive information in Board of Education v. Pico. 85
This case involved a school board-ordered removal of books from secondary
school libraries after the board classified the book as "anti-American, anti-
Christian, anti-Semitic, and just plain filthy". 86 Justice Brennan, writing for a
three-justice plurality, emphasized the First Amendment's role in assuring
widespread dissemination of ideas and information. Citing Griswold v.
Connecticut, 87 the Court held that "(t)he State may not, consistently with the
spirit of the First Amendment, contract the spectrum of available knowledge."
The Court noted that "the right to receive ideas is a necessary predicate to the
recipient's meaningful exercise of his own rights of speech, press, and political
freedom." It then cited Madison's admonition that, "(a) popular Government,
without popular information, or the means of acquiring it, is but a Prologue to a
Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance:
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And a people who mean to be their own Governors, must arm themselves with
the power which knowledge gives." 88
The U.S. Supreme Court has reiterated, in various contexts, the idea that "the
Constitution protects the right to receive information and ideas." 89 Kleindienst v.
Mandel 90 acknowledged a First Amendment right to receive information but
deferring to Congress' plenary power to exclude aliens. Lamont v. Postmaster
Gen er al 91 invalidated a statutory requirement that foreign mailings of
"communist political propaganda" be delivered only upon request by the
addressee. Martin v. City of Struthers 92 invalidated a municipal ordinance
forbidding door-to-door distribution of handbills as violative of the First
Amendment rights of both the recipients and the distributors. 93
Whether the "right to know" is based on a statutory right provided by the FOIA
or a constitutional right covered by the First Amendment, the underlying premise
is that an informed people is necessary for a sensible exercise of the freedom of
speech, which in turn, is necessary to a meaningful exercise of the right to vote
in a working democracy. In 1927, Justice Louis Brandeis gave the principle
behind the First Amendment its classic formulation, viz:
Those who won our independence believed that the final end of the state
was to make men free to develop their faculties, and that in its
government the deliberative forces should prevail over the arbitrary. They
valued liberty both as an end and as a means. They believed liberty to be
the secret of happiness and courage to be the secret of liberty. They
believed that freedom to think as you will and to speak as you think are
means indispensable to the discovery and spread of political truth; that
without free speech and assembly discussion would be futile; that with
them, discussion affords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace to freedom
is an inert people; that public discussion is a political duty; and that this
should be a fundamental principle of the American government. They
recognized the risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion,
they eschewed silence coerced by law — the argument of force in its
worst form. Recognizing the occasional tyrannies of governing majorities,
they amended the Constitution so that free speech and assembly should
be guaranteed. 94
The U.S. Supreme Court also held in Stromberg v. California 95 that the First
Amendment provides "the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may
be obtained by lawful means . . ." 96 The Amendment is "the repository of . . .
self-governing powers" 97 as it provides a peaceful means for political and social
change through public discussion. In Mills v. State of Alabama, 98 it ruled that
there may be differences about interpretations of the First Amendment, but
there is practically universal agreement that a major purpose of the Amendment
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was to protect the free discussion of governmental affairs. This of course
includes discussions of candidates, structures and forms of government, the
manner in which government is operated or should be operated, all such matters
relating to political processes. 99 Justice William J. Brennan summarized the
principle succinctly in his opinion for the Court in Garrison v. Louisiana, viz: ". . .
speech concerning public affairs is more than self-expression; it is the essence of
self-government. (emphasis supplied)" 100
2. Philippine jurisdiction
The electorate's right to information on public matters occupies a higher legal
tier in the Philippines compared to the United States. While the right to
information in U.S. jurisdiction is merely a statutory right, it enjoys
constitutional status in Philippine jurisdiction. The 1987 Constitution not only
enlarged the democratic space with provisions on the electorate's direct exercise
of sovereignty, but also highlighted the right of the people to information on
matters of public interest as a predicate to good governance and a working
democracy. The Bill of Rights sanctifies the right of the people to information
under Section 7, Article III of the 1987 Constitution, viz:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law. (emphasis supplied)
This provision of the right to information sans the phrase "as well as to
government research data" made its maiden appearance in the Bill of Rights of
the 1973 Constitution. The original draft of the provision presented to the 1971
Constitutional Convention merely said that access to official records and the
right to information "shall be afforded the citizens as may be provided by law."
Delegate De la Serna pointed out, however, that the provision did not grant a
self-executory right to citizens. He thus proposed the rewording of the provision
to grant the right but subject to statutory limitations. 101 The 1973 Constitution
thus provided in Section 6, Article IV, viz:
Sec. 6. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations as may
be provided by law.
In the United States, President Aquino has made much of the point that
the government should be open and accessible to the public. This
amendment is by way of providing an umbrella statement in the
Declaration of Principles for all these safeguards for an open and honest
government distributed all over the draft Constitution. It establishes a
concrete, ethical principle for the conduct of public affairs in a genuinely
open democracy, with the people's right to know as the centerpiece. 106
(emphasis supplied)
I n Valmonte v. Belmonte, 109 the Court had occasion to rule on the right to
information of a lawyer, members of the media and plain citizens who sought
from the Government Service Insurance System a "list of the names of the
Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were
able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos." 110 In
upholding the petitioners' right, the Court explained the rational of the right to
information in a democracy, viz:
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This is not the first time that the Court is confronted with a controversy
directly involving the constitutional right to information. In Tañada v.
Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (involving the need
for adequate notice to the public of the various laws which are to regulate
the actions and conduct of citizens) and in the recent case of Legaspi v.
Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530
(involving the concern of citizens to ensure that government positions
requiring civil service eligibility are occupied only by persons who are
eligibles), the Court upheld the people's constitutional right to be informed
of matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
xxx xxx xxx
An informed citizenry with access to the diverse currents in political, moral
and artistic thought and data relative to them, and the free exchange of
ideas and discussion of issues thereon is vital to the democratic
government envisioned under our Constitution. The cornerstone of this
republican system of government is delegation of power by the people to
the State. In this system, governmental agencies and institutions operate
within the limits of the authority conferred by the people. Denied access
to information on the inner workings of government, the citizenry can
become prey to the whims and caprices of those to whom the power had
been delegated . . .
xxx xxx xxx
. . . The right of access to information ensures that these freedoms are
not rendered nugatory by the government's monopolizing pertinent
information. For an essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. Yet, this
open dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when the
participants in a discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to information
is merely an adjunct of and therefore restricted in application by the
exercise of the freedoms of speech and of the press. Far from it. The
right to information goes hand-in-hand with the constitutional policies of
full public disclosure (footnote omitted) and honesty in the public service
(footnote omitted). It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking abuse in
government. 111 (emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa 112 which involved the
petitioner's request addressed to respondent Executive Secretary Ronaldo B.
Zamora for the "names of the executive officials holding multiple positions in
government, copies of their appointments, and a list of the recipients of luxury
vehicles seized by the Bureau of Customs and turned over to Malacañang." 113
The respondent was ordered to furnish the petitioner the information requested.
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The Court held, viz:
Under both the 1973 (footnote omitted) and 1987 Constitution, this (the
right to information) is a self-executory provision which can be invoked
by any citizen before the courts . . .
Elaborating on the significance of the right to information, the Court said
in Baldoza v. Dimaano (71 SCRA 14 [1976] . . .) that "[t]he incorporation
of this right in the Constitution is a recognition of the fundamental role of
free exchange of information in a democracy. There can be no realistic
perception by the public of the nation's problems, nor a meaningful
democratic decision-making if they are denied access to information of
general interest. Information is needed to enable the members of society
to cope with the exigencies of the times." 114 (emphases supplied)
As early as the 1897 case of People ex rel. Dix v. Kerwin, 120 the requirement of
notice in an election has been recognized, viz:
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. . . We are not prepared to hold that this statute (requiring the giving of
notice) is, under all circumstances and at all times, so far mandatory that
a failure to observe its requirements will defeat an election otherwise
regularly holden. There are many cases which hold that elections
regularly held and persons regularly voted for on nominations made
where there has been failure to observe some specific statutory
requirement will not thereby be necessarily defeated and the direction
may, because of the excusing circumstances, be held directory rather
than mandatory. We do not believe the circumstances of the present
case, as they are now exhibited, bring it all within this rule. The theory of
elections is that there shall be due notice given to the voters, and that
they must be advised either by a direct notice published by the clerk, as
provided by statute, or by proceedings taken by the voters and the
people generally in such a way as that it may be fairly inferred that it was
generally and thoroughly well understood that a particular office was to
be filled at the election, so that the voters should act understandingly and
intelligently in casting their ballots.
Similarly, in Griffith v. Mercer County Court, et al., 122 it was held, viz:
There is a clear distinction between the case of a vacancy which is to be
filled at a special election to be held at a time and place to be appointed by
some officer or tribunal, authorized by statute to call it, and a case where
the statute itself provides for filling a vacancy at the next general election
after it occurs. In such case nearly all the authorities hold that if the body
of electors do in fact know the vacancy exists, and candidates are
regularly nominated by the various political parties to fill it, and the
candidates receive most of the votes cast, such election is valid, even
though no notice thereof was published in a manner provided by the
statute. It would be hypertechnical and unreasonable to hold that a failure
to comply literally with the statute in such case would avoid the election.
123 (emphasis supplied)
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per se as well as its
relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the present state of things, where the Convention
has hardly started considering the merits of hundreds, if not thousands,
of proposals to amend the existing Constitution, to present to the people
any single proposal or a few of them cannot comply with this
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requirement. 127 (emphasis supplied)
The need for the voter to be informed about matters which have a bearing on his
vote was again emphasized by the Court in UNIDO v. Commission on Elections.
128 This case involved the amendments to the 1973 Constitution proposed by the
Batasang Pambansa in 1981. The Court reiterated that the more people are
adequately informed about the proposed amendments, their exact meaning,
implications and nuances, the better. We held, viz:
To begin with, we cannot agree with the restrictive literal interpretation the
Solicitor General would want to give to the "free, orderly and honest
elections" clause of Section 5, Article XII-C above-quoted. Government
Counsel posits that the said clause refers exclusively to the manner in
which the elections are conducted, that is to say, with the manner in
which the voters are supposed to be allowed to vote. Perhaps, such a
theory may hold insofar as ordinary elections of officials are concerned.
But the Court views the provision as applicable also to plebiscites,
particularly one relative to constitutional amendments. Be it borne in mind
that it has been one of the most steadfast rulings of this Court in
connection with such plebiscites that it is indispensable that they be
properly characterized to be fair submission — by which is meant that the
voters must of necessity have had adequate opportunity, in the light of
conventional wisdom, to cast their votes with sufficient understanding of
what they are voting on. We are of the firm conviction that the charter's
reference to honest elections connotes fair submission in a plebiscite.
(emphasis supplied).
Similarly, the Court ruled in Sanidad v. COMELEC 129 that plebiscite issues are
matters of public concern and importance. The people's right to be informed and
to be able to freely and intelligently make a decision would be better served by
access to an unabridged discussion of the issues, including the forum.
It cannot be overemphasized that an informed electorate is necessary for a truly
free, fair and intelligent election. The voting age was lowered from 21 years, to
18 years because the youth of 18 to 21 years did not differ in political maturity,
130 implying that political maturity or the capacity to discern political information
is necessary for the exercise of suffrage. It is for this obvious reason that minors
and the insane are not allowed to vote. Likewise, the literacy test for the right to
vote was abolished because as explained by the Committee on Suffrage and
Electoral Reforms of the 1971 Constitutional Convention, "the requirement to
read and write was written into our constitution at a time when the only
medium of information was the printed word and even the public meetings were
not as large and successful because of the absence of amplifying equipment. It is
a fact that today the vast majority of the population learn about national
matters much more from the audio-visual media, namely, radio and television,
and public meetings have become much more effective since the advent of
amplifying equipment." Again, the necessity of information relevant to an
election is highlighted. Similarly, in the 1986 Constitutional Commission,
Commissioner Bernas, in justifying enfranchisement of the illiterates, spoke of
their access to information relevant to elections, viz:
If we look at . . . the communication situation in the Philippines now, the
means of communication that has the farthest reach is AM radio. People
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get their information not from reading newspapers but from AM radio —
farmers while plowing, and vendors while selling things listen to the radio.
Without knowing how to read and write, they are adequately informed
about many things happening in the country. 131
Several election cases, albeit not involving an issue similar to the case at bar,
affirm the necessity of an informed electorate in holding free, intelligent and
clean elections. In Blo Umpar Adiong v. Commission on Elections 132 where this
Court nullified a portion of a COMELEC Resolution prohibiting the posting of
candidates' decals and stickers on "mobile" places and limiting their location to
authorized posting areas, we held, viz:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and
public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.
686 [1964] . . .) Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if
our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the
more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital
right of suffrage. (Mutuc v. Commission on Elections, 36 SCRA 228
[1970]).
xxx xxx xxx
When faced with border line situations where freedom to speak by a
candidate or party and freedom to know on the part of the electorate are
invoked against actions intended for maintaining clean and free elections,
the police, local officials and COMELEC should lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the State's
power to regulate are not antagonistic. There can be no free and honest
elections if in the efforts to maintain them, the freedom to speak and the
right to know are unduly curtailed.
xxx x xx xxx
. . . we have to consider the fact that in the posting of decals and stickers
on cars and other moving vehicles, the candidate needs the consent of
the owner of the vehicle. In such a case, the prohibition would not only
deprive the owner who consents to such posting of the decals and
stickers the use of his property but more important, in the process, it
would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he
desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health regulations
of time and manner of distribution, it must be fully preserved.
(Martin v. City of Struthers, Ohio , 319 U.S. 141; 87 L. ed. 1313
[1943]). 133
Several provisions of our election laws also manifest a clear intent to facilitate
the voters' acquisition of information pertaining to elections to the end that their
vote would truly reflect their will. Section 52(j) of Article VII of B.P. Blg. 881 or
the Omnibus Election Code gives the COMELEC the following power and duty:
(j) Carry out a continuing and systematic campaign through
newspapers of general circulation, radios and other media forms to
educate the public and fully inform the electorate about election laws,
procedures, decisions, and other matters relative to the work and duties
of the Commission and the necessity of clean, free, orderly and honest
electoral processes. (Sec. 185(k), 1978 EC)
(k) Enlist non-partisan groups or organizations of citizens from the
civic, youth, professional, educational, business or labor sectors known
for their probity, impartiality and integrity . . . Such groups or
organizations . . . shall perform the following specific functions and
duties:
A. Before Election Day:
Of the same import is Section 25 of R.A. No. 8436, "An Act Authorizing the
Commission on Elections to Use an Automated Election System in the May 11,
1998 Elections and Subsequent Electoral Exercises" which provides, viz:
Section 25. Voters' Education. — The Commission together with and
in support of accredited citizens' arms shall carry out a continuing and
systematic campaign though newspapers of general circulation, radio and
other media forms, as well as through seminars, symposia, fora and
other non-traditional means to educate the public and fully inform the
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electorate about the automated election system and inculcate values on
honest, peaceful and orderly elections. (emphasis supplied)
Similarly, R.A. No. 9006, "An Act to Enhance the Holding of Free, Orderly, Honest,
Peaceful and Credible Elections through Fair Election Practices," approved a few
months before the May 2001 elections or on February 12, 2001 provides in
Section 6.4, viz:
Sec. 6.4. ...
In all instances, the COMELEC shall supervise the use and employment of
press, radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal
opportunities under equal circumstances to make known their
qualifications and their stand on public issues within the limits set forth in
the Omnibus Election Code and Republic Act No. 7166 on election
spending. (emphasis supplied)
The Omnibus Election Code also provides for procedures and requirements that
make the election process clear and orderly to avoid voter confusion. Article IX of
the Code provides, viz:
Section 73. Certificate of candidacy. — No person shall be eligible for
any elective public office unless he files a sworn certificate of candidacy
within the period fixed herein.
In the case of special elections, the need for notice and information is
unmistakable under Section 7 of the Omnibus Election Code of the Philippines,
as amended by R.A. No. 7166, which provides, viz:
Sec. 7. Call for special election. — In case a permanent vacancy shall
occur in the Senate or House of Representatives at least one (1) year
before the expiration of the term, the Commission shall call and hold a
special election to fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) after the occurrence of the vacancy. However, in
case of such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election. (R.A. No. 7166, Sec.
4).
The postponement, declaration of failure of election and the calling of
special elections as provided in Sections 5, 6, and 7 of the Omnibus
Election Code shall be decided by the Commission sitting en banc by a
majority vote of its members. The causes for the declaration of a failure
of election may occur before or after the casting of votes or on the day
of the election. (R.A. No. 7166, Sec. 4)
The Commission shall send sufficient copies of its resolution for the
holding of the election to its provincial election supervisors and election
registrars for dissemination, who shall post copies thereof in at least three
conspicuous places preferably where public meetings are held in each city
or municipality affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al., 137 we ruled that constituents could not be charged
with notice of a second special elections held only two days after the failure of
the special election. This case involved the May 8, 1995 regular local elections in
Madalum, Lanao del Sur. Due to the threats of violence and terrorism in the area,
there was a failure of election in six out of twenty-four precincts in Madalum. A
special elections was set on May 27, 1995 but the Board of Election Inspectors
failed to report for duty due to the threats of violence. The Monitoring
Supervising Team of the COMELEC reset the special elections to May 29, 1995 in
a school 15 kilometers away from the designated polling places. In ruling that
the May 29 special elections was invalid, the Court ruled, viz:
We cannot agree with the COMELEC that petitioner, his followers or the
constituents must be charged with notice of the special elections to be
held because of the failure of the two (2) previous elections. To require
the voters to come to the polls on such short notice was highly
impracticable. In a place marred by violence, it was necessary for the
voters to be given sufficient time to be notified of the changes and
prepare themselves for the eventuality.
It is essential to the validity of the election that the voters have notice in
some form, either actual or constructive of the time, place and purpose
thereof . (Furste v. Gray, 240 Ky 604, 42 SW 2d 889; State ex. rel. Stipp
v. Colliver (MO) 243 SW 2d 344.) The time for holding it must be
authoritatively designated in advance. The requirement of notice even
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becomes stricter in cases of special elections where it was called by some
authority after the happening of a condition precedent, or at least there
must be a substantial compliance therewith so that it may fairly and
reasonably be said that the purpose of the statute has been carried into
effect. (State ex. rel. Stipp v. Colliver, supra). The sufficiency of notice is
determined on whether the voters generally have knowledge of the time,
place and purpose of the elections so as to give them full opportunity to
attend the polls and express their will or on the other hand, whether the
omission resulted in depriving a sufficient number of the qualified electors
of the opportunity of exercising their franchise so as to change the result
of the election. (Housing Authority of County of Kings v. Peden , 212 Cal
App 2d 276, 28 Cal Rptr, other citations omitted)
Although this case did not involve a special election held simultaneously with
a general election by mandate of law as in the case at bar, the doctrine that
can be derived from this case is that the electorate must be informed of the
special election as proved by official or actual notice.
VII. Application of the Principles of Democracy, Republicanism,
Freedom of Information and Discourse to the Case at Bar
The 1987 Constitution, with its declaration that the Philippines is not only a
republican but also a democratic state, and its various provisions broadening the
space for direct democracy unmistakably show the framers' intent to give the
Filipino people a greater say in government. The heart of democracy lies in the
majoritarian rule but the majoritarian rule is not a mere game of dominant
numbers. The majority can rule and rule effectively only if its judgment is an
informed one. With an informed electorate, a healthy collision of ideas is assured
that will generate sparks to fan the flames of democracy. Rule by the ignorant
majority is a sham democracy — a mobocracy — for in the words of Jefferson, a
nation cannot be both free and ignorant. If there is anything that democracy
cannot survive, it is the virus of ignorance.
Elections serve as a crevice in the democratic field where voters, for themselves
and the public good, plant the seeds of their ideals and freedoms. Yick Wo is
emphatic that voting is a fundamental right that preserves and cultivates all
other rights. In a republic undergirded by a social contract, the threshold consent
of equal people to form a government that will rule them is renewed in every
election where people exercise their fundamental right to vote to the end that
their chosen representatives will protect their natural rights to life, liberty and
property. It is this sacred contract which makes legitimate the government's
exercise of its powers and the chosen representatives' performance of their
duties and functions. The electoral exercise should be nothing less than a pure
moment of informed judgment where the electorate speaks its mind on the
issues of the day and choose the men and women of the hour who are seeking
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their mandate.
The importance of information and discourse cannot be overemphasized in a
democratic and republican setting. Our constitutional provisions and cases
highlighting the people's right to information and the duty of the State to
provide information unmistakably recognize the indispensable need of properly
informing the citizenry so they can genuinely participate in and contribute to a
functioning democracy. As elections lie at the foundation of representative
democracy, there should be no quarrel over the proposition that electoral
information should also be disseminated to the electorate as a predicate to an
informed judgment.
The ponencia concedes that a survey of COMELEC's resolutions relating to the
conduct of the May 14, 2001 elections would reveal that they "contain nothing
which would amount to a compliance, either strict or substantial, with the
requirements in Section 2 of R.A. No. 6645, as amended." Nowhere in its
resolutions or even its press releases did COMELEC state that it would hold a
special election for a single Senate seat with a three-year term simultaneously
with the regular elections on May 14, 2001. Nor did COMELEC give official notice
of the manner by which the special election would be conducted, i.e., that the
senatorial candidate receiving the 13th highest number of votes in the election
would be declared winner in the special election. Still, the ponencia upheld the
holding of the May 14, 2001 special election despite "the lack of 'call' for such
election and . . . lack of notice as to the office to be filled and the manner by
which the winner in the special election is to be determined."
With all due respect, I cannot subscribe to the ponencia's position for it leaves
the purity of elections and the ascertainment of the will of the electorate to
chance, conjecture and speculation. Considering that elections lie at the heart of
the democratic process because it is through the act of voting that consent to
government is secured, I choose to take a position that would ensure, to the
greatest extent possible, an electorate that is informed, a vote that is not
devalued by ignorance and an election where the consent of the governed is
clear and unequivocal.
The ponencia justifies its position on the lack of call or notice of the time and
place of the special election by holding that the law charges voters with
knowledge of R.A. No. 7166 which provides that in case of a vacancy in the
Senate, the special election to fill such vacancy shall be held simultaneously with
the next succeeding election, that is, the May 14, 2001 election. The ponencia's
argument is that the provisions of R.A. No. 7166 stating that the special election
would be held simultaneously with the regular election operated as a call for the
election so that the absence of a call by the COMELEC did not taint the validity of
the special election. With due respect, this is not the intention of R.A. No. 7166
for despite its paragraph 1, Section 7 that "in case of such vacancy in the Senate,
the special election shall be held simultaneously with the succeeding regular
election", the law nevertheless required in paragraph 3 of the same section that
"(t)he Commission shall send sufficient copies of its resolution for the holding of
the election to its provincial election supervisors and election registrars for
dissemination, who shall post copies thereof in at least three conspicuous places
preferably where public meetings are held in each city or municipality affected."
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility .
T[HE] P[RESIDENT]. That is right .
S[ENATOR] R[OCO]. We will already consider the 13th placer of the
forthcoming elections that will be held simultaneously as a special election
under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator
Roco.
The Senate's observation that the procedure for the special election that it
adopted would be less costly for the government as the ballots need not be
printed again to separately indicate the candidate voted for the special election
does not also lend justification for the manner of conduct of the May 14, 2001
special election. We cannot bargain the electorate's fundamental right to vote
intelligently with the coin of convenience. Even with the Senate stance, the
regular ballot had to be modified to include a thirteenth space in the list of
senatorial seats to be voted for. At any rate, reliance on R.A. No. 6645 is
erroneous. This law provides that when a vacancy arises in the Senate, the
Senate, by resolution, certifies to the existence of the vacancy and calls for a
special election. Upon receipt of the resolution, the COMELEC holds the special
election. R.A. No. 6645 was amended in 1991 by R.A. No. 7166. The latter law
provides that when a permanent vacancy occurs in the Senate at least one year
before the expiration of the term, "the Commission (on Elections) shall call and
hold a special election to fill the vacancy . . ." Since under R.A. No. 7166, it is the
power and duty of the COMELEC, and not the Senate, to call and hold the
election, the Senate cannot, by mere resolution, impose upon the COMELEC the
procedure for the special election that it intended such that "Comelec will not
have the flexibility" to deviate therefrom. As a constitutional body created to
ensure "free, orderly, honest, peaceful, and credible elections", it was the duty of
the COMELEC to give to the electorate notice of the time, place and manner of
conduct of the special elections and to adopt only those mechanisms and
procedures that would ascertain the true will of the people.
In sum, I submit that the ruling of the ponencia would result not just to a step
back in an age of information, but would constitute a fall in the nation's rise to
democracy begun as early as the Malolos Constitution and begun anew in the
1987 Constitution after the 1986 People Power Revolution. Informing the
electorate on the issues and conduct of an election is a prerequisite to a "free,
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orderly, honest, peaceful, and credible elections." Free elections does not only
mean that the voter is not physically restrained from going to the polling booth,
but also that the voter is unrestrained by the bondage of ignorance. We should
be resolute in affirming the right of the electorate to proper information. The
Court should not forfeit its role as gatekeeper of our democratic government run
by an informed majority. Let us not open the door to ignorance. HSDIaC
Footnotes
WHEREAS, the Honorable Teofisto Guingona, Jr. was elected Senator of the
Philippines in 1998 for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal-
Arroyo nominated Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been conferred by a
majority vote of all the members of both Houses of Congress, voting
separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of
the Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12)
Senators, all elective Members of the House of Representatives, and all elective
provincial, city and municipal officials shall be held on the second Monday of
May and every three years thereafter. Now, therefore be it Resolved by the
Senate, as it is hereby resolved to certify as it hereby certifies, the existence of
a vacancy in the Senate and calling the Commission on Elections (COMELEC) to
fill up said vacancy through election to be held simultaneously with the regular
election on May 14, 2001 and the senatorial candidate garnering the thirteenth
(13th) highest number of votes shall serve only for the unexpired term of
former Senator Teofisto T. Guingona, Jr. (Emphasis supplied)
3. Resolution No. 01-005 reads:
WHEREAS, the Commission on Elections, sitting [E]n [B]anc as the National
Board of Canvassers for the election of Senators of the Philippines, officially
canvassed in open and public proceedings the certificates of canvass of votes
cast nationwide for senators in the national and local elections conducted on
May 14, 2001.
Based on the canvass of the Certificates of Canvass submitted by seventy-
eight (78) out of seventy-nine (79) Provincial Boards of Canvassers, twenty
(20) City Boards of Canvassers of cities comprising one (1) or more legislative
districts, two (2) District Boards of Canvassers of Metro Manila, and one (1)
Absentee Voting, and the remaining uncanvassed certificate of canvass which
will not anymore affect the results, the Commission on Elections sitting En Banc
as the National Board of Canvassers finds that the following candidates for
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senators in said elections obtained as of June 04, 2001 the following number of
votes as indicated opposite their names:
Name Votes Garnered
No person shall be eligible for more than one office to be filled in the same
election, and if he files his certificate of candidacy for more than one office, he
shall not be eligible for any of them. However, before the expiration of the
period for the filing of certificates of candidacy, the person who has filed more
than one certificate of candidacy may declare under oath the office for which
he desires to be eligible and cancel the certificate of candidacy for the other
office or offices.
10. Castro v. Del Rosario, 25 Phil. 611 (1967); Section 1(a), Rule 66, THE 1997
RULES OF CIVIL PROCEDURE.
11. Sections 1-2, Rule 65, THE 1997 RULES OF CIVIL PROCEDURE.
12. Gil v. Benipayo, G.R. No. 148179, 26 June 2001 (minute resolution).
13. Acop v. Guingona, G.R. No. 134856, 2 July 2002, 383 SCRA 577; Viola v. Hon.
Alunan III, 343 Phil. 184 (1997); Alunan III v. Mirasol, 342 Phil. 467 (1997).
14. 342 Phil. 467 (1997).
15. Joya v. Presidential Commission on Good Government , G.R. No. 96541, 24
August 1993, 225 SCRA 568.
16. Kilosbayan, Incorporated v. Morato, 316 Phil. 652 (1995).
17. CONST., art. VIII, secs. 1 and 5(2).
18. Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Commission on Elections, 352 Phil. 153 (1998).
19. See Warth v. Seldin, 442 U.S. 490, 45 L.Ed.2d 343 (1975).
20. Dumlao v. COMELEC, G.R. No. L-52245, 22 January 1980, 95 SCRA 392
(internal citations omitted).
21. De Guia v. COMELEC, G.R. No. 104712, 6 May 1992, 208 SCRA 420; Gonzales
v. COMELEC, 129 Phil. 7 (1967). See also Telecom. & Broadcast Attys. of the
Phils., Inc. v. COMELEC, 352 Phil. 153 (1998).
22. G.R. No. 141284, 15 August 2000, 338 SCRA 81.
23. Integrated Bar of the Philippines vs. Zamora, G.R. No. 141284, 15 August
2000, 338 SCRA 81.
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24. E.g. Resolution No. 3258, dated 28 September 2000 (providing for the
calendar of activities and periods of prohibited acts in connection with the 14
May 2001 elections as amended by Resolution Nos. 3322, dated 5 October
2000; 3284, dated 20 October 2000; 3306, dated 7 November 2000; 3426,
dated 22 December 2000; and 3359, dated 6 February 2001); Resolution No.
3632, dated 1 March 2001 (canceling the certificates of candidacy of nuisance
senatorial candidates); and Resolution No. 3743, dated 12 March 2001
(providing for the general instructions to the Boards of Election Inspectors on
the casting and counting of votes).
25. E.g. undated COMELEC pamphlet entitled "Frequently Asked Questions on the
May 14, 2001 Elections."
26. 26 AM. JUR. 2d Elections § 281 (1996); 29 C.J.S. Elections § 70 (1965).
27. Ibid; ibid.
28. 26 AM. JUR. 2d Elections § 282 (1996).
29. Ibid.
28. Bogdanor, V. and Butler, D., Democracy and Elections: Electoral Systems and
their Political Consequences (1983), p. 1. See also Dissenting Opinion of Justice
Bernardo Pardo in Akbayan-Youth, et al. v. COMELEC , 355 SCRA 318 (2001), p.
359.
29. Baradat, L., supra, p. 134.
30. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
31. Stephens, O. and Scheb, J. II, supra, p. 816.
61. Article 25 of the Covenant of Civil and Political Rights provides, viz:
67. Id., p. 545, citing Writings of James Madison 398 (1806), reprinted in Note,
Access to Official Information: A Neglected Constitutional Right, 27 Ind. L.J. 209,
212 (1952).
68. Gatewood, C., supra, p. 9.
69. Wilcox. W., "Access to Environmental Information in the United States and the
United Kingdom," 23 Loyola of Los Angeles International & Comparative Law
Review (March 2001) 121, 124-125.
70. Ducat, C., Constitutional Interpretation: Rights of the Individual, vol. II (2000),
p. 1030.
110. Id.
111. 170 SCRA 256, 264-266 (1989).
112. 337 SCRA 733 (2000).
113. Id., p. 745 (2000).
114. Id., pp. 746-747 (2000).
115. G.R. No. 133250, July 9, 2002.